Interim
Joint Committee on Judiciary

Minutes
of the<MeetNo1>4th Meeting

of
the 2013 Interim

<MeetMDY1>November 1, 2013

Call to Order and Roll Call

The<MeetNo2>4th meeting of the Interim Joint
Committee on Judiciary was held on<Day>Friday,<MeetMDY2>November 1, 2013, at<MeetTime>10:00 AM, in<Room>Room
171 of the Capitol Annex. Senator Whitney Westerfield, Chair,
called the meeting to order, and the secretary called the roll.

The minutes of the June 7, September 6, and October 4, 2013
meetings were approved without objection.

Prosecutorial Bar Issues

Speaking for the prosecutorial bar, Christian County
Attorney Mike Foster, Chris Cohron of the Kentucky Commonwealth Attorneys
Association, Mitchel Denham of the Office of the Attorney General, and Boone
County Attorney Robert Neace testified about concerns of Kentucky’s prosecutors.

1.A
defendant’s capacity. If a juvenile lacks capacity, the case is dismissed
and no further action is taken. Mr. Foster argued that the state has an
obligation to act in the best interest of the child, which would include
helping the child transition towards obtaining competency.

2.Risk
assessments. By including earlier assessments after adjudication, the state
would be able to more immediately provide effective services or adjust a
juvenile’s risk level.

3.Parent
involvement in treatment. The prosecutorial bar hears most frequently that
judges should be able to order parents to participate in counseling. Mr. Foster
stated that treatment is more effective if schools and families are involved
with children.

4.Juvenile
court jurisdiction. The state should examine whether status offenses and mandatory
treatment orders should be heard in juvenile court.

5.Complicated
internal structure. The juvenile support system needs to be restricted to
save money, which is the biggest issue priority. Mr. Foster suggested combining
agencies like the Department of Juvenile Justice (DJJ) and Department for Community
Based Services (DCBS) as a way to cut costs and increase efficiency.

6.DUI.
The prosecutorial bar feels that the current driving under the influence
system is flawed due to the refusal law for breathalyzer testing. According to Mr.
Foster, there should be greater penalties for refusals in order to make
prosecution more successful.

Representative Yonts inquired of Mr. Foster’s opinion as to
the legality of status offenses, to which Mr. Foster replied that he felt they
were unconstitutional. Representative Yonts asked about changing the blood alcohol
content threshold to .05, and Mr. Foster said that the county attorneys believe
the current laws are sufficient for prosecuting impaired drivers, but that they
would support appropriate judicial adjustments to prevent impaired drivers
being on the road.

1.DNA
sampling. In regards to DNA sampling upon arrest, the association believes
that it has the possibility of solving and preventing crimes, and making
prosecution more effective. Safeguards can be put in place to protect from any
negative consequences of DNA sampling, and it has been ruled constitutional by
the United States Supreme Court in Maryland v. King.

2.Synthetic
drugs and heroin. Even though the recent synthetic drug bill reduced
overall use, synthetic drugs are still being targeted toward juveniles and
ex-offenders. It is often called “probation weed” because users believe it will
not be caught or punished in drug court. Heroin use is also increasing, as
prescription opioids become less available.

3.“One-size-fits-none”
system. The penalty structure allows equal penalties for unequal offenses,
which ultimately affects high recidivism rates in the state.

4.Budget.
Because the procedural process is evolving in court, it requires financial
investment to maintain prosecutorial effectiveness.

5.DUI.
Mr. Cohron stated that the five-year DUI look-back period should be longer
to address the issue of dangerous repeat offenders.

6.Competency.
Mr. Cohron stated that incompetency is a recurring issue. If a person is
ruled incompetent to stand trial but not incompetent enough to be committed, the
person re-enters the communities and is likely to reoffend.

Mitchel Denham presented the Office of the Attorney
General’s (AG) main prosecutorial issue: opioid abuse and diversion. Previous
legislation reduced prescription pill deaths and abuse, but this decrease was
being countered by growing heroin use. Mr. Denham mentioned three ways in which
opioid abuse can be better addressed. The first is a deterrent-effect, achieved
by prosecuting a drug trafficker for a heroin user’s death. The second tool is
public awareness, facilitated through legislation, existing agencies, public
service announcements, and reward systems like scholarships. Finally, the AG
believes in the need for increased treatment availability. This includes
proactive treatment services, such as encouraging Medicaid to cover substance
abuse treatment. These services also save money, as exemplified by Recovery
Kentucky centers, which return $3.50 for every dollar invested. Treatment
availability also includes a focus on prevention, which would reduce fiscal and
societal costs.

As the AG is working with Senator Stine on heroin use
legislation, Senator Stine emphasized a need for a three-pronged approach to
abuse, including treatment, education, and intervention. Chairman Tilley observed
that heroin abuse is market-driven, with price being a key factor in its
availability and use. He commented that recent legislative efforts have begun
to have positive impacts on the state’s recidivism rate.

Defense Bar Issues

Speaking for the defense
bar, Ernie Lewis of the Kentucky Association of Criminal Defense Lawyers
(KACDL) and Ed Monahan of the Department of Public Advocacy (DPA) discussed
issues faced by defense lawyers in Kentucky’s courts.

Ernie Lewis emphasized
the need for the state to spend more wisely on the justice system. Kentucky has
20,000 people incarcerated at a cost of nearly $500 million per year. With
these numbers increasing, it is an unsustainable model. Despite the high
incarceration rate, the crime rate has remained stagnant since the 1970s. Mr.
Lewis spoke about two specific recommendations from KACDL to help alleviate
this financial and societal burden. The first was to reclassify nonviolent
crimes to misdemeanors and to reclassify misdemeanors to violations. Not only
would this change save significant resources, but it would also address inmate overcrowding.
Secondly, KACDL advocates for felony expungement and the restoration of voting
rights for convicted felons. Because Kentucky has such a high rate of
incarceration, the state has a high number of disenfranchised voters. KACDL
believes that this denies convicted felons their dignity and that it can have
detrimental effects on communities. Mr. Lewis said that the state should pass a
felony expungement law for nonviolent offenders who committed their crimes in
the distant past and that the state should restore voting rights to nonviolent
convicted felons through a constitutional amendment.

Mr. Lewis also discussed
the KACDL position on heroin use legislation. While the organization recognizes
that heroin abuse is a pressing problem in Kentucky, KACDL is against charging
murder for selling heroin without proof of knowledge of possible death or
contact with decedent. According to Mr. Lewis, the death would have to be
assumed to be a “foreseeable event” caused by trafficking. Additionally, KACDL was
wary of 2013 SB 6, which would have made trafficking cocaine, heroin, and
methamphetamine above certain quantities, which they deemed too low, a Class B
felony.

Ed Monahan presented
nine ways to maintain public safety and reduce costs for counties and states for
2014. These solutions, addressing the defense bar issues, were split into three
categories: saving counties money, saving state money, and saving money for
both the state and counties.

Mr. Monahan presented
two possible ways to save counties money.

1.Create
a “clear and convincing” standard for pretrial release decisions for those that
seem unlikely to repeat. Mr. Monahan suggested that the state write the
goals of HB 462 related to pretrial release into law. As it stands, HB 463 has
saved counties $40 million in jail costs, but the pretrial release rates are declining
to below the pre-HB 463 level, as already evidenced by three-month data from this
fiscal year.

2.Reclassify
minor misdemeanors to violations. Mr. Monahan stated that this solution has
been supported across party lines and by various agencies. This can be achieved
by passing 2013 HB 395, which would reduce jail costs, reduce court times, and
increase the General Fund revenue from fines.

Mr. Monahan also presented three ways to save the state
money.

1.Create
a “gross misdemeanor” classification for low-level felons. Under this
classification, gross misdemeanors would include a penalty range from six
months to two years, circuit court prosecution, the possibility to house state
prisoners in county jail, a conviction that would not lead to felony penalties,
automatic or presumptive probation for a two year period, and the possibility
for expungement. Benefits of creating this classification would include
reduction in prison population and assistance with reentry and reformation.

2.Presumed
parole for all eligible low-risk offenders. Mr. Monahan stated that 2013 SB
82 supports a more expansive parole policy. Only 72.56 percent of low-risk inmates
received parole from Fiscal Year 12-13, and as of September 2013, only 59.47
percent of low-risk inmates had received parole.

3.Amend
violent offender and PFO statutes to ensure Kentucky’s most costly punishments
are used to protect public safety. The broad applicability of these
statutes catches too many people in an expensive net of prolonged
incarceration.

Mr. Monahan suggested four ways that counties and the state
can save money from new or amended legislation.

1.Create
Class D felony expungement restoration of voting rights for ex-felons. Mr.
Monahan commented that 2013 HB 47 and HB 70 would have allowed class D felony
expungements and would make 94,645 Kentuckians eligible for expungement.
Furthermore, because expungement would promote employment and reduce
recidivism, it could provide additional funding to the General Fund and allow
people to reenter the workforce. Mr. Monahan stated that with the possibility
for employment, the probability of new arrests for offenders would decline and
eventually become as low as that of the general population (4-8 years).

2.Limit
capital prosecutions.Mr. Monahan claimed that there is a 60 percent
error rate in capital prosecutions in Kentucky. However, by limiting capital
prosecutions, the margin of error would decrease. He suggested reducing capital
punishment sentencing options, statutorily authorizing a judge to eliminate
death as a possible punishment when appropriate, and requiring timely, complete
open file discovery.

3.Reform
juvenile justice. Mr. Monahan suggested seven ways in which the juvenile
justice system could be improved: replace status offenders with Child in Need
Services model, no longer allow prosecution of a child ten years old or
younger, using detention of a child as a last resort, increase opportunities
for diversion, expand judicial discretion to allow case-specific and
child-specific outcomes, define the role of school resource officers, and
enhance protections for children and parents of children who are questioned.

4.Expand
DPA alternative sentencing social worker program. Mr. Monahan stated that
this was the DPA’s highest recommendation because it was less costly and a more
beneficial response to recidivism rates. A University of Kentucky study found
that for every dollar spent on the DPA alternative sentencing, the state saved
$4.47 to $6.80.

Responding to a question from Senator Seum, Mr. Monahan
stated that the figures measuring crime rate were compiled by the FBI and
Kentucky State Police through a uniform method.

Indiana’s Expungement Experience

Indiana Representative
Jud McMillin of House District 68 presented testimony of Indiana’s new
comprehensive expungement law. Until last session, Indiana only had limited
expungement statutes; now, it has some of the most expansive. Representative
McMillin provided a brief overview of the law, which he supplemented with
responses to questions from the committee. The law states that any arrest where
there was not a conviction or incarceration can be expunged after a year.
However, certain felonies are not eligible for expungement, such as sex
offenses. There are two ways in which a felony can be expunged: lower-level
felonies can be taken off the public record, while higher-level felonies remain
but are marked as expunged.

Responding to a question from Chairman Westerfield, Representative
McMillin acknowledged that expungement cannot protect from a felony record
remaining as an electronic footprint, but the law does state that this
information cannot be used to discriminate against the former felon in employment
situations. In response to Chairman Westerfield, Representative McMillin
explained that there were many groups who supported the bill, including the
Indianapolis Chamber of Commerce, who felt that this bill helped combat unemployment.
Following a question from Representative Benvenuti, Representative McMillin
stated that the bill grants immunity from liability for businesses and
organizations who hire an expunged felon. Responding to a question from Senator
Seum, Representative McMillin explained that prosecutors have access to
expunged felonies in the case of repeat offenders. Furthermore, if convicted
again, the felon returns to their pre-expungement status.

Responding to a question from Senator Seum, Representative
McMillin explained that applications for opportunities such as universities and
jobs can only inquire about felony convictions that have not been expunged. Representative
McMillin stated that it is important to allow felons to return to their
pre-offense status, agreeing with Senator Webb that expungements are important
for parental rights by allowing expunged felons to participate in their
children’s lives in a more involved capacity while also encouraging
rehabilitation and integration into communities. Representative McMillin,
responding to questions from Representative Yonts, stated that expungement
requires a statutory amendment and that it works like a gubernatorial pardon but
does not replace it.

An audience member, Sandra Williams, spoke about felony
expungements. Ms. Williams shared a personal story about how her niece’s felony
conviction negatively impacted her life. Because felony convictions are part of
someone’s permanent record, it decreases life opportunities that, in turn, can
lead to repeat offenses.

Update on the Activities of the
Unified Juvenile Code Task Force

Because of limited time,
Chairman Westerfield moved the task force report to the next meeting of the
Committee.